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Work
Instruction 8:
Assessment of Evidence
This work instruction describes how inspectors should
assess evidence collected during the investigation.
| • |
reviewing
the information and evidence collected to date
to determine whether any conclusions drawn are
supported by the information and evidence and
are robust; |
| • |
determining
the value, quality and reliability of information
and evidence collected so far; |
| • |
cross-reference
to the original objectives of the investigation
to ensure they have been achieved; |
| • |
determining
whether further investigation is needed to achieve
the objectives and/or to further establish the
circumstances; |
| • |
applying
the principles of EMM to decide on any appropriate
enforcement action; |
| • |
enabling
decisions to be made about stopping the investigation
because the objectives have been achieved or further
investigation is disproportionate in accordance
with the examples given in the investigation policy. |
There
are four key activities
Inspectors
should also refer to the appropriate parts of the
Enforcement Handbook - England and Wales, and the
Enforcement Handbook - Scotland for guidance concerning
taking statements and taking physical evidence. The
Handbooks also contain information concerning liaison
with and use of expert evidence which may be relevant
to the investigation process.
Key activity 1
ASSESSMENT AND VERIFICATION OF INFORMATION AND EVIDENCE
OBTAINED
| 2 |
Inspectors
should continually assess the evidence collected
in order to determine whether the objectives of
the investigation are likely to be achieved (see
Work instruction 1 Key activity
1). They should identify potential offence(s)
at this stage. They should identify elements necessary
to prove an offence(s) against existing evidence.
Inspectors should also ask the following questions
when assessing evidence; does it:
| (1) |
establish the circumstances satisfactorily
or do grey areas or inconsistencies exist? |
| (2) |
provide
sufficient evidence to prove a breach, ie
are all points to prove covered? |
| (3) |
provide sufficient information to establish
no breach has been made? |
| (4) |
identify
all reasonable lines of enquiry? |
| (5) |
identify
any potential defences? |
| (6) |
contain sufficient support from other sources
such as physical evidence and expert witnesses? |
|
| 3 |
The
following format of table may be useful when assessing
evidence.
|
ASSESSMENT
OF EVIDENCE
|
| Points
to prove |
Available
evidence |
Evidence
to be obtained |
Possible
sources |
Employment |
|
|
|
| Unsafe
system of work etc |
|
|
|
|
| 4 |
Assessment of evidence may identify other witnesses
who may be able to offer more information concerning
underlying causes/management issues, eg supervisors/managers.
Evidence from such witnesses may add considerable
value. |
| 5 |
Inspectors
should keep an open mind when assessing evidence
and attempt to separate facts from preconceptions
or opinions because reliance on the latter may
undermine a later prosecution. Avoid dismissing
evidence advantageous to any potential defendant.
Ensure evidence against, is sufficient to overcome
it. |
| 6 |
Inspectors
should also verify information and evidence obtained
to date. Interviews with witnesses or statements
will usually form the bulk of the information
and evidence collected so far. It should be reviewed
to ensure it is reliable and accurately reflects
the circumstances. |
| 7 |
The
evidence of witnesses may not always be reliable.
They may:
(1) be unable to remember key details;
(2) have an inaccurate perception of events; or
(3) be untrustworthy. |
| 8 |
Inspectors should, so far as possible, and to
the extent appropriate in the circumstances, determine
the truth and accuracy of a witnessâs evidence
by:
| (1) |
checking
it against the evidence of others and against
independent facts; |
| (2) |
assessing
and testing the probability and credibility
of the allegations against other reasonable
explanations for the incident; |
| (3) |
where
necessary, planning to carry out further
interviews with the injured person (IP)
or others using suitable questioning techniques
aimed at helping the interviewee overcome
any difficulty in remembering details. |
|
| 9 |
If
the truth of any person's evidence is crucial
to significant enforcement action, ie prosecution,
inspectors should be careful to validate the evidence
as described. Inspectors should remember that
the conviction with which details are recounted
is not a measure of their accuracy. If misleading
evidence is not detected during an investigation
it may have serious consequences for any prosecution
resulting from the investigation. |
| 10 |
When interviewing IPs, inspectors should be aware
that historically, and rarely, IPs have been influenced
by a potential civil claim, and to an extent have
concealed their contribution to the accident.
This contribution has varied from interfering
with safety devices or equipment provided to failing
to follow instructions. |
| 11 |
The
outcome of the assessment process could be one
of the following:
| (1) |
Conclusion of the investigation due to
| (a) |
no
breach identified, |
| (b) |
insufficient
evidence to prove a breach, |
| (c) |
not having a realistic prospect of
conviction, |
| (d) |
breach
identified but action by dutyholder
since taken and application of the
EMM do not justify action, |
| (e) |
disproportionate
effort required to secure sufficient
evidence, |
| (f) |
a
defence likely to fatally undermine
any case has been identified |
|
| (2) |
decision
to propose prosecution on strength of evidence
collected to date; |
| (3) |
target
effort towards further investigation to
establish the circumstances and/or to strengthen
evidence pending potential prosecution; |
| (4) |
decision
to pursue alternatives to prosecution such
as notices, letter, advice. |
|
| 12 |
Inspectors and their line managers should record
and agree the reasoning behind any decision to
suspend or terminate any investigation to justify
action if questioned later. |
| 13 |
Inspectors should consider other enforcement outcomes,
when prosecution is not considered, such as notices,
letters or advice in order to facilitate improvement.
More investigation may be required for this purpose,
eg to enable an inspector to gather further information
demonstrating underlying management failures. |
| 14 |
Inspectors should also give appropriate consideration
to other enforcement outcomes such as:
| (1) |
recommendation for a revocation of an asbestos
licence if relevant to an investigation;
or |
| (2) |
prosecution
for a failure to have ELCI cover at the
time of an incident. |
|
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Key activity 2
INVESTIGATION REVIEW
| 15 |
For
more complex investigations, inspectors should
review the investigation with their line manager.
The factors outlined in paras 2-14 can be used
to guide such discussion. Such discussions have
benefits in that the line manager is kept informed
of developments and progress and can monitor whether
the investigation continues to be proportionate.
Matters concerning inspector workload and stress
can also be addressed. Decisions relating to the
outcome, ie to conclude, abort, pursue further
investigation etc can also be made. Sufficient
information and evidence to complete a FOCUS investigation
report (see Work instruction 9) which satisfies
the objectives for the investigation and achieves
relevant performance standards, will justify a
conclusion. |
| 16 |
An
investigation review can benefit the inspector
in that reasonable lines of enquiry can be confirmed
or modified. Informal review can also play an
important part in the review process (see Key
activity 3). |
| 17 |
If an investigation has not been completed after
2 months, a meeting between the line manager and
the investigating inspector should take place.
The purpose of the meeting is to carry out an
investigation review, decide on future action
and identify specific reasonable time-scales,
which should normally be at 2-monthly intervals,
after which another review will be undertaken
if the investigation has not been concluded. The
purpose of the review is to ensure an investigation
does not stagnate and to take into consideration
matters such as witness availability, inquest
hearings and expert witness reports, when agreeing
any extension. |
| 18 |
The
2-month period is that period from the inspectorâs
receipt of any notification of an incident to
the achievement of the performance standards relevant
to the investigation. The period also requires
the completion of a report into the investigation
which, depending on its complexity and enforcement
outcome, may range from a FOCUS investigation
report and associated contact entries, to full
investigation/prosecution reports. If the report
has not been completed at the 2-month review,
then the inspector and line manager should agree
an action plan for completion of the report. This
should normally be within one month or in agreement
with the line manager (see also Work instruction
9). |
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Key
activity 3:
INFORMAL REVIEW
| 19 |
Inspectors should engage in informal review with
colleagues, when appropriate, as it may help with
the process of assessing evidence. An informal
chat with colleagues can often help confirm or
redirect your thoughts concerning an investigation. |
| 20 |
Informal
review is a means to improve consistency. It is
also a vehicle for providing suggestions and constructive
criticism to help progress the investigation.
It is not just a tool for identifying weaknesses.
Inspectors can cross-reference their views and
actions with those of their colleagues to try
and gain some sort of a consensus of opinion that
the investigation is going along the right lines. |
| 21 |
Reviews, particularly with experienced inspectors,
and those in the sector can often introduce a
fresh perspective and can help identify possible
new lines of enquiry or expose potentially fatal
flaws with information or evidence. They can help
redirect or target an investigation and can often
suggest useful sources of information, including
guidance etc, to help focus investigative effort. |
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Key activity 4
APPLICATION OF EMM
| 22 |
The
systematic application of EMM is defined by the
procedure itself, eg all fatal accidents. Inspectors
should apply the principles of EMM to all other
investigations to facilitate the enforcement decision-making
process in relation to the information and evidence
obtained to date. See Enforcement Management Model. |
| 23 |
Inspectors should apply the principles of EMM
throughout the investigation procedure, eg establishing
benchmarks; deciding on early enforcement action,
eg PN. They will also apply the principles when
they have obtained sufficient information and
evidence from the investigation to enable judgements
to be made concerning any risk gap and subsequent
enforcement expectation. |
| 24 |
Inspectors
should then take into account local and strategic
factors together with targets for action before
making a final enforcement decision. A decision
to enforce, may require further investigation
to complete the evidence collection process. Following
any further investigation, inspectors should apply
the principles of EMM to facilitate final enforcement
decisions. |
| 25 |
Justification
for concluding the investigation can now be agreed
in consultation with a line manager providing
all the circumstances are known and the risk of
reoccurrence is removed or minimised. A decision
not to enforce following the application of the
principles of EMM, should result in a prompt and
appropriate contact with the dutyholder, eg letter,
advice or request for an action plan. Inspectors
should also inform other interested parties, such
as those directly affected, relatives and employee
representatives. |
| 26 |
Where
the EMM has been applied systematically, a copy
of the EMM proforma should be kept with the analysis
papers. This should also include a record of any
differences between the outcome indicated by the
EMM, and the action proposed, along with the reasons
for the final enforcement action. |
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